The NJ Appellate Court recently published a case of first impression to touch on this COVID case law Guiseppe Amato v Township of Ocean School District, which dealt with two issues: whether the Judge of Compensation should recuse herself and whether the deceased was an essential employee.
The first issue was whether the Judge of Compensation, whom the case was before, should recuse herself as she was a sponsor of the COVID legislation prior to her appointment as a workers’ compensation judge. The Judge had been one of eight sponsors for the Bill that was passed and signed by the Governor on (9/4/20). N.J.S.A. 34:15.11 and .12, created a rebuttable presumption that an “essential employee” who contracted COVID during a public health emergency was entitled to workers’ compensation benefits.
The Appellate Court noted the New Jersey Code of Judicial Conduct requires a judge to be impartial and if their appearance on impartiality could be questioned by a reasonable person, then they would be required to recuse themselves. In this matter, the Appellate Court noted a former legislator, now Judge, who sponsored a bill that was enacted into law is not per se disqualified from presiding over the case. Specifically, the Appellate Court noted “a judge’s personal knowledge of or experience with certain legislative history does not necessarily render the judge biased or unable to make a fair judgment in that matter.”
The second issue was whether the decedent was an essential employee. The decedent was a full-time teacher who contracted COVID and passed away on May 18, 2021 due to respiratory failure. The widower filed a dependency claim alleging the decedent contracted COVID during the period of occupational exposure. The argument was whether the decedent is an “essential employee”, under the Statute.
The term “essential employee” was rather broadly defined in N.J.S.A. 34:15-21.11 to include employees in the public or private sector who during a state of emergency:
(1) is a public safety worker or first responder, including any fire, police or other emergency responders;
(2) is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
(3) performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
(4) is any other employee deemed an essential employee by the public authority declaring the state of emergency.
The Respondent argued there was a genuine issue of material fact as the statute did not specifically or implicitly include teachers as essential employees. However, the Judge found, a teacher in a public middle school was an essential employee.
In reaching this conclusion, the Judge noted that all schools had been closed by the Governor by Executive Order. Thereafter, on August 13, 2020, the Governor signed another Executive Order, allowing schools to reopen for in-person instruction. Additionally, the Court relied upon guidance from Homeland Security and the New Jersey Office of Emergency Management. Both offices provided guidelines as to who should be considered an essential employee that included teachers.
The Appellate Court affirmed and also determined teachers were essential employees based upon section (4) of N.J.S.A. 34:15-21.11.
Comment: While the decedent was found to be an essential employee, the respondent still has the ability to produce evidence to rebut the presumption that the COVID contraction was work-related. Therefore, it is always important to do a thorough investigation when it comes to any COVID related claim. Additionally, a judge will be required to recuse themselves from a case when their impartiality or the appearance of the same may be reasonably questioned but sponsoring this bill did not rise to that level.
[View source.]
https://www.jdsupra.com/legalnews/covid-19-when-should-a-judge-be-recused-8468433/
